| People v Nanand |
| 2016 NY Slip Op 01702 [137 AD3d 945] |
| March 9, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Radesh Nanand, Appellant. |
Lynn W. L. Fahey, New York, NY (Tammy Linn of counsel), for appellant, andappellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Adam K. Brody, and John F. McGoldrick of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Blumenfeld, J.), rendered August 16, 2013, convicting him of assault in the first degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was convicted, upon a jury verdict, of assault in the first degree inconnection with his assault of the complainant, his former girlfriend, in October 2007. Attrial, the complainant testified that, more than one year before the October 2007 incident,she had abruptly moved out of the apartment she shared with the defendant because hehad physically assaulted her. She further testified that she subsequently moved toGeorgia, and had returned to New York to visit her sick mother one day before thesubject attack. The complainant testified that, on the evening of October 30, 2007, shewalked to a park in Queens with the defendant to discuss their past relationship, and,when she told him that she would not resume a relationship with him, he held her frombehind, slashed her neck, and left her as she was bleeding profusely. The complainanttestified that, although she remembered trying to get out of the park, she could notremember what happened thereafter until she awoke in an ambulance. The complainantalso testified that, sometime after the assault, the defendant had called her and told her, "Ithought I fucking killed you."
At trial, the People also offered the testimony of a homeowner who lived across fromthe park. The homeowner testified that, on the day at issue, the complainant, who was astranger to him, came to his home, and that she was bleeding profusely, crying for help,and repeating, "My boyfriend." The homeowner testified that he called 911 and anambulance and the police came. Another police officer came later in the evening to speakto him.
The doctor who treated the complainant in the hospital emergency room also testifiedon behalf of the People. The doctor testified that the complainant's right common carotidartery had been almost completely severed, that the complainant underwent emergencysurgery, and that [*2]without medical treatment, it washighly likely the complainant would have died. The complainant had visible scars on theright side of her neck at trial, and she testified that she could not sleep through the night,woke up unable to breathe, had difficulty lifting on her right side, and felt a stingingsensation and her arm "lock[ed] off" when out in the cold.
The defendant did not testify but offered the testimony of two witnesses: a doctorwho testified that certain scratches on the complainant's neck were consistent withself-inflicted injuries, and a police officer who testified that earrings that the complainanthad worn the day of the incident were found in the park on the ground in or near a poolof blood and were later inadvertently disposed of by the police department. No testinghad been performed on the earrings. On summation, defense counsel argued that thecomplainant's injuries were self-inflicted as a result of the defendant's refusal to get backtogether with her.
Thereafter, the jury found the defendant guilty of assault in the first degree. Onappeal, the defendant raises a number of challenges in a pro se supplemental brief andthrough his counsel. For the reasons set forth below, we affirm.
The defendant's contention, raised in his pro se supplemental brief, that the evidenceof serious physical injury adduced at trial was legally insufficient to support hisconviction of assault in the first degree is unpreserved and, in any event, without merit(see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 492 [2008]). Thecomplainant's testimony, coupled with the testimony of her physician and the witnesswho came to her aid immediately after the incident, constituted legally sufficientevidence that the complainant sustained serious physical injury within the meaning ofPenal Law § 10.00 (10) (see People v Jones, 38 AD3d 352, 353 [2007]; People vSacasa, 214 AD2d 688 [1995]). Moreover, upon the exercise of our factual reviewpower (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was notagainst the weight of the evidence (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Lindsay, 131 AD3d625, 626 [2015]).
The defendant's pro se contention that the Supreme Court erred in permitting thePeople to introduce evidence of his prior acts of domestic abuse and threats against thecomplainant also is without merit. That evidence was properly admitted as relevantbackground material to enable the jury to understand the defendant's relationship with thecomplainant and as evidence of the defendant's motive and intent in the commission ofthe charged crimes (see People v Molineux, 168 NY 264, 293 [1901]; People v Laverpool, 52 AD3d622, 622-623 [2008]; People v Hanson, 30 AD3d 537, 538 [2006]; People vHowe, 292 AD2d 542, 542 [2002]).
The defendant's pro se claim that the Supreme Court erred in failing to give alimiting instruction is unpreserved and, in any event, without merit (see People v Petithomme, 131AD3d 877, 878 [2015]; People v Wilson, 123 AD3d 626, 626 [2014]). Thedefendant's remaining pro se contention likewise is without merit (see People v Lopez, 16 NY3d375, 384 [2011]; People vCohen, 123 AD3d 733, 734 [2014]).
The defendant's contention that he was deprived of his right to a fair trial due toimproper remarks made by the prosecutor during summation is partially unpreserved forappellate review since the defendant failed to object to many of the remarks he nowchallenges (see CPL 470.05 [2]; People v Flanagan, 132 AD3d 693, 694 [2015]). In anyevent, most of the challenged remarks were fair comment on the evidence and fairresponse to the arguments made by defense counsel in summation (see People vGalloway, 54 NY2d 396, 399 [1981]; People v Willis, 122 AD3d 950, 950 [2014]). To the extentthat several of the prosecutor's remarks made during summation were improper, thoseremarks did not deprive the defendant of a fair trial, and any other error in this regardwas harmless (see People v Flanagan, 132 AD3d at 694; People v Roscher, 114 AD3d812, 813 [2014]; People v Walston, 196 AD2d 903, 904 [1993]).
The defendant's contention that he was deprived of the effective assistance ofcounsel is without merit (seePeople v Taylor, 1 NY3d 174, 176 [2003]; People v Williams, 123 AD3d 1152, 1154 [2014]; People v Brooks, 89 AD3d746 [2011]). The record reveals that defense counsel provided meaningfulrepresentation (see People v Taylor, 1 NY3d at 176; People v Benevento,91 NY2d 708, 712-713 [1998]; [*3]People vWilliams, 123 AD3d at 1154).
The defendant's contention that the sentence imposed penalized him for exercisinghis right to trial is unpreserved for appellate review and, in any event, without merit (see People v Roiz, 101 AD3d1048, 1049 [2012]; Peoplev Ramos, 74 AD3d 991, 992 [2010]). Moreover, the sentence imposed was notexcessive (see People v Roiz, 101 AD3d at 1049; People v Suitte, 90AD2d 80 [1982]). Dillon, J.P., Hall, Roman and Duffy, JJ., concur.